Advancing Access to Justice for Sex Trafficking Victims in Iraq

Vol. 42 No. 4

By

Sherizaan Minwalla (sherizaan.minwalla@gmail.com) is a human rights lawyer who spent four years in Iraq running Heartland Alliance’s human rights programs that included legal and social protection programs addressing gender-based violence and trafficking. William H. Pryor (whpryor@hotmail.com) is a lawyer and program specialist who worked for four years with the U.S. Department of State’s Bureau of International Narcotics and Law Enforcement Affairs managing INL’s justice programs for judicial capacity building at the national and regional levels, court administration and case management streams, and improving evidenced based prosecutions.

When Vian was 13 years old, her 20-year-old neighbor Ahmed convinced her that he loved her and wanted to marry her. Like many impressionable young girls, Vian believed Ahmed and looked forward to their future life together. Vian also had sex with Ahmed outside of marriage. While Iraqi culture allows 13-year-old girls to marry, it condemns and isolates young girls who have sex outside of marriage. When Vian’s father told her that he planned to marry her to an older man, she panicked, fearing that her father and future husband would kill her for not being a virgin. Vian called Ahmed and pleaded with him to run away with her. Instead of marrying her, Ahmed and his friend picked up Vian, drove her to a remote field, raped her, and abandoned her. Vian was alone and, as it became dark, she decided to flag down a car to ask for help. A woman stopped and agreed to help her, offering a ray of hope. But the woman was a trafficker. Instead of providing support, she took Vian to work in a brothel. Under Iraqi law, this is where Vian formally crossed the line from being a victim to being a criminal.

After a year of being forced to work in a brothel, Vian was arrested, detained, and charged with engaging in prostitution under Article 3 of the Iraqi Penal Code (IPC). Vian had the benefit of an attorney trained in human trafficking to represent her throughout legal proceedings; yet, after a harrowing trial, she was convicted and sentenced to six months in jail.

Sex trafficking is a pervasive problem throughout Iraq. Women traffickers play a critical role in recruiting victims because they find it easier to gain the trust of young and vulnerable women and girls. Iraqi women and children are trafficked within Iraq and to other countries in the region. In addition, women from other countries, such as Ukraine, China, Ethiopia, and Ghana, are being enticed into Iraq with promises of service jobs and then trafficked into sex work. In the Kurdistan Region, the government has responded to security concerns by establishing a system in which officers register and monitor individual residents in each house and carefully vet all international arrivals. Yet in many hotels, bars, restaurants, and massage parlors, traffickers appear confident in their ability to function in plain view of the police and security officials. In some cases, this is indicative of the corruption that is widespread in Iraq. In other cases, there appears to be complicity or, at the very least, official acquiescence.

Many factors render women and children vulnerable to human trafficking in Iraq, ranging from displacement, widowhood, poverty, and gender discrimination to persistent conflict and insecurity. It is the cultural interpretation of honor in Iraqi society, however, that often plays a pervasive and crucial role in creating or exacerbating susceptibility to sex trafficking, particularly for women and girls.

Honor, Culture, and Shame

Systems or codes of honor are deeply rooted in Iraqi society. Although they predate Islam and are not religious dictates in the truest sense, these traditions persist within the predominantly Muslim culture and society. This is due to the perception that sanctions against those who violate honor codes are justified under Islam, as well as to the social pressure faced by individuals and families within a society that values and enforces compliance with gender norms. Honor is maintained through a complex system in which an individual’s behavior affects the reputation of the family and/or tribe. How honor is maintained within Iraqi society is gendered, yet there is a much greater burden on females to preserve a family’s honor through the maintenance of sexual purity before marriage and fidelity within marriage. Women and girls who have, or who are perceived as having, sexual relationships outside of marriage are at high risk for honor-based violence. Although men are the primary perpetrators of honor-based violence, women may also inflict or support violence as a means of exerting power and control and based on the belief that it will help to restore the reputation of their families.

It is essential to understand the role that honor plays in the daily lives of Iraqi women and girls in order to identify risk factors, to protect victims, and to identify and prosecute traffickers. It is also important to recognize how perspectives on honor are embedded in Iraqi laws and legal practice in both formal and informal justice systems. For example, under Article 395 of the IPC, it is illegal to seduce a woman based on a marriage promise that leads to sex but not marriage. Articles 128(a) and 130–132 permit reduced sentences for individuals convicted of killing a female family member on the basis of preserving honor. Article 427 permits investigative and trial judges to terminate criminal proceedings if the rapist agrees to marry the victim, and the fact that the law is silent on the issue of the victim’s consent illustrates the underlying purpose—to preserve family honor. In such cases, victims are often resigned to marrying their rapists in order to avoid the so-called “honor” killing. In an honor-based system, even a rape victim brings shame to her family because the rape is considered a sexual act outside of marriage and external factors, such as the use of force, are not considered.

In the Iraqi informal justice system, powerful tribal leaders, sheikhs, and other religious and community leaders resolve disputes outside of the formal legal systems. This has particular implications for women and girls when family problems and disputes arise. For example, decision makers in the informal justice system often agree to honor killing as punishment and a way to restore group honor. Other cases are “solved” through mechanisms closely resembling the Article 427 provisions, including forced marriage, exchanging women/girls in marriage, and so forth. The basis for decisions in the informal justice system is typically cultural or religious in nature. The disparate cultural and religious polities of Iraq are alike in denying a voice to victims in the proceedings or outcomes of trafficking-related crimes.

Iraq’s Human Trafficking Law

The Iraqi Constitution directly and indirectly prohibits forced labor, slavery, slave trade, trafficking in women and children, and sex trade. On April 30, 2012, Iraq signed into law comprehensive anti-trafficking legislation. Other relevant domestic laws include the Iraqi Penal Code, Iraq Criminal Procedure Code, Iraqi Personal Status Law, Juvenile Care Law, Law on Foreigners Residence, and the Iraq Labor Law. Unfortunately, the anti-trafficking law passed by the Iraqi Parliament will not apply in the three areas administered by the Kurdish Regional Government (KRG) provinces of Sulaimaniya, Duhok, and Erbil unless and until the Kurdish National Assembly (KNA) adopts the law. This has not happened yet and, in the absence of anti-trafficking legislation in the KRG, lawyers, judges, police, and prosecutors continue to apply existing domestic laws. In June 2011, the KNA passed a less comprehensive Family Violence Bill covering honor-based crimes, domestic violence, and female genital mutilation.

Iraq’s anti-trafficking law includes provisions on prosecution, prevention, and protection, but it is not clear how these laws will intersect with conflicting domestic laws in both the application and spirit of the law. In spite of Article 12 of the law, which provides that existing penal code provisions will apply where the trafficking law is silent, the reality is that trafficking cases implicate many criminal, civil, and personal status areas that are also not covered by other parts of the penal code. Even under the new comprehensive legislation, it is unclear which laws would prevail in a trafficking case, given the narrow interpretation of laws typical of courts in Iraq’s civil law system.

Article 12 also fails to address the issue of criminal liability for victims, generally, as well as how courts should handle cases where criminal defendants are in fact victims of human trafficking. Today, only a handful of victims have succeeded in getting charges dropped during investigation based on the coercion defense under IPC Article 62. Whether this continues to be their only recourse when charged with crimes, or whether being found a victim of human trafficking absolves them of other criminal liability, is unclear. Additionally, questions arise on the issue of criminal liability for potential human trafficking victims who are third-country nationals accused of crimes related to immigration violations.

The anti-trafficking law is also silent on evidentiary rules. Testimonial evidence by the victim or trafficker is usually the only evidence available in cases where there are no contracts or other corroborating documents, forensic evidence, or witness testimony. Yet, under the Iraqi Criminal Procedure Code, in the absence of a confession, an individual’s testimony must be corroborated by other evidence. This presents challenges in cases where trafficking victims are charged with crimes based on easily obtained police and other witness statements, but the victim’s testimony is the only evidence available to support her defense. For example, in a case from the Kurdistan Region, the judge suggested to a 14-year-old defendant during her trial to find and bring to court the men who supposedly trafficked her in order to prove that she was coerced. The victim, rather than the police, was given the burden of finding the traffickers and bringing evidence of their crimes to the court as part of her defense.

The new trafficking law does establish that exchanging money for the purpose of exploitation of prostitution fits within the definition of human trafficking under Article 1(1). Thus, men who pay for sex could be charged as traffickers; prosecutors and judges would need to establish that the men knew they were paying for sex from individuals who were forced to provide services. In contravention of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, the Iraq anti-trafficking law does not per se treat all children working in prostitution as sex trafficking victims. Men could continue to pay for sex from minors with impunity if the child was unable to prove coercion. Additional regulations and evidentiary rules are needed to support the ability of victims and their lawyers to use the protections contained in current Iraqi and Kurdish laws to challenge abuse, detention, and prosecution of crimes.

Implementing the Law

Article 13 of the anti-trafficking law provides authority for implementation through the Minister of the Interior. Under a previous draft of the law, responsibility for implementation was to be a more integrated approach through the Council of Ministers to ensure that victim services and protection would be equally prioritized. Following the last national elections in 2010, the acting Interior Minister has been the beleaguered Prime Minister, Nouri al Maliki. Given political and executive demands, there are concerns that law enforcement, rather than victim protection and support, will be the focus of the administration, if any real investment is made in the law at all. The ability of judges to provide oversight over implementation or support to victims is limited without deeper support for administrative and security elements, more sophisticated training in the new law, and instruction on topics such as the coercive tactics used by traffickers to exploit victims.

Under Article 3, the Ministry of Interior–led Central Commission is charged with carrying out seven tasks that include developing plans to combat human trafficking, proposing measures to assist victims, and launching awareness campaigns. Additionally, the government is supposed to issue an annual report on human trafficking, along with the information on efforts to combat trafficking in Iraq. According to the U.S. State Department’s Trafficking in Persons Report on Iraq, the government has taken a few steps to address the problem, and the Global Office on Trafficking in Persons (G/TIP) raised Iraq’s ranking from a Tier 2 Watch List to Tier 2. Some of the reasons for this increase in rank include the fact that the Central Committee has held meetings and established an anti-trafficking department within the Ministry of Interior. Additionally, the Ministry established a hotline for victims. However, even these modest gains, when understood within the existing context, raise concerns. With so little expertise, limited assistance available to support new efforts, a widespread lack of awareness about human trafficking, and a dearth of services to victims in Iraq, it is unclear how efforts such as hotlines will benefit victims. For example, it is unknown where a hotline could refer victims for help even if logistical challenges are surmounted to have lines staffed within the Ministry.

Vian’s Case

Vian, the subject of our case study, comes from a city in the northern Kurdish region of Iraq. Unlike most trafficking victims who languish in detention for months waiting for trial, Vian met with an attorney who agreed to represent her soon after her arrest. The attorney regularly visited detention centers as part of a U.S. State Department G/TIP anti-trafficking program that provided legal representation to victims of sex and labor trafficking.

Vian’s attorney prepared her criminal defense case based on Article 62 of the IPC, which provides a legal defense if the accused can prove she was coerced into committing the criminal act. Unfortunately, Vian faced bias, misogyny, and abusive treatment from the judge and prosecutor at trial. The judge characterized Vian as a whore, insisted that she enjoyed having sex with many men, and then blamed Vian’s mother for not raising her daughter well. Vian’s father told the judge that he would kill Vian if she returned home, yet faced no consequences for making threats in open court. After serving her sentence, Vian was transferred to a women’s shelter; she was no longer a victim but a convicted prostitute. Those who lied, raped, or profited from Vian never answered to the courts or faced threats of death or violence based on their actions, but Vian’s life remains at risk and, as long as she remains in Iraq, she has no options for a normal, safe, healthy life.

Investments in improving the legal and service environments to support victims are producing visible changes at the higher levels of the Iraqi legislative and justice system. Increasingly, enlightened judges are responding favorably to victims in judicial proceedings, dropping charges in cases where victims were forced to commit crimes. A decade ago, young victims such as Vian would not have access to any legal services, and legislation such as the 2012 anti-trafficking law was not even being considered. Victims like Vian, however, are still far too likely to be considered first as accused criminals. Increased attention and support for motivated Iraqi actors is needed to support further growth. The anti-trafficking programs supported by the G/TIP office achieved significant success in creating access to justice for victims by providing quality legal representation throughout the duration of the victim’s criminal case. The program trained lawyers to develop and apply legal skills necessary to prepare strong cases and to advocate for victims from the time of arrest through investigation and trial. Vian’s case illustrates how victims suffer when faced with harsh laws and attitudes in the criminal justice system. Yet there were also many successful outcomes in the program, and lawyers have successfully argued Article 62 defenses that have led to investigative and trial judges dropping charges or finding defendants not guilty. Change will have to start with those willing to listen, to apply the facts to the law, and to take risks.

Advertisement

  • Call for ILN Articles

  • Contact Us

  • International Law News

spring14_300x250.jpg
  • Editor-in-Chief

  • Managing Editor

  • Sample Issues

International Law Section Fall Conference ad